COMMONWEALTH v. JONES (2012)

OPINION

The Commonwealth of Kentucky appeals from the December 1, 2010, order of the Jefferson Circuit Court granting Charlotte Jones's motion to expunge the record of her voided felony conviction of illegal possession of a controlled substance in the first degree, schedule II—cocaine. For the following reasons, we affirm.

In 1992, Jones was indicted by the grand jury with trafficking in a controlled substance, schedule II—cocaine, a class C felony, and complicity thereto. Jones pled guilty to an amended lesser charge of illegal possession of a controlled substance in the first degree, schedule II—cocaine, a class D felony, and the trial court probated her three-year sentence for a period of five years.

Approximately seventeen years later, Jones moved pro se for the trial court to expunge the record of her felony conviction. The Commonwealth opposed the motion on the basis that the court lacked statutory authority to expunge the conviction under either of the expungement statutes, KRS 1 431.076 or KRS 431.078. Jones, by counsel, then moved for the court to void her felony conviction pursuant to KRS 218A.275, which the Commonwealth did not oppose. The court subsequently entered an order voiding Jones's felony conviction per KRS 218A.275.

Thereafter, Jones moved the trial court to expunge the voided felony conviction. The Commonwealth opposed the motion on grounds that expungement of voided felony convictions was not authorized under KRS 431.076, which permits expungement only for those acquitted of crimes or for whom charges have been dismissed with prejudice. Following a hearing on the matter, the court granted Jones's motion to expunge the voided felony conviction, relying on CR 2 60.02(f) to do so.³ This appeal followed.

On appeal, the Commonwealth argues that the trial court abused its discretion by granting Jones's motion to expunge the voided felony conviction because CR 60.02 is not an avenue for expunging voided felony convictions when expungement is not authorized by statute. The Commonwealth emphasizes that KRS 431.076 does not provide for expungement of felony convictions ruled void by operation per KRS 218A.275.

Two Kentucky statutes grant trial courts the power to expunge criminal records: KRS 431.076 and KRS 431.078. Clements v. Commonwealth, 203 S.W.3d 710, 712 (Ky.App.2006). KRS 431.076 grants courts the authority to expunge the criminal records of persons exonerated of the charges they faced by being found not guilty or whose charges have been dismissed with prejudice. KRS 431.078 grants courts the authority to expunge the criminal records of misdemeanor and violation convictions. Neither statute expressly grants courts the authority to expunge a criminal record after a felony conviction has been voided.

That being said, the issue before this court is the effect of a voided conviction, and whether it amounts to a dismissal of the charges. Jones argues that the statute addressing the voiding of convictions, KRS 218A.275, equates voiding with dismissal and thus, her voided conviction was properly expunged under the provision of KRS 431.076 permitting expungement of charges dismissed with prejudice. We agree. The version of KRS 218A.275 in effect at the time of the trial court's order provides, in relevant part:

(9) In the case of any person who has been convicted for the first time of possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under the subsection and dismissal may occur only once with respect to any person.

KRS 218A.275(9) (emphasis added).⁴

Neither party challenges the trial court's decision to void Jones's felony conviction under KRS 218A.275. Indeed, a clear reading of KRS 218A.275(9), addressing the voiding of a conviction and its dismissal, shows a legislative intent to equate the voiding of a conviction with its concomitant dismissal. Thus, the trial court's voiding and dismissing Jones's conviction under KRS 218A.275(9) brought that offense within the parameters of KRS 431.076, which permits the expungement of a charge dismissed with prejudice. No one can seriously contend but that under the circumstances the dismissal of Jones's offense is “with prejudice.” Accordingly, while we disagree with the trial court's decision to expunge Jones's voided felony conviction under CR 60.02(f), we believe that expungement was proper in these circumstances.⁵

We agree with the Commonwealth that a court's ability to expunge criminal convictions is largely governed by statute. See Commonwealth v. Holloway, 225 S.W.3d 404, 406–07 (Ky.2007) (holding that a court's statutory authority to expunge records is governed by the clear and unambiguous language of KRS 431.076 and KRS 431.078, and the court's inherent authority to expunge records is exceedingly narrow in scope, e.g., reserved for remedying the denial of one's constitutional rights); Clements v. Commonwealth, 203 S.W.3d 710, 711 (Ky.App.2006) (noting that the power to expunge criminal charges that have been dismissed or misdemeanor convictions is derived from statute). However, in this instance, the trial court's ability to expunge Jones's conviction necessarily followed from the statutory language contained in KRS 218A.275(9).⁶

The Jefferson Circuit Court's order is affirmed.

VANMETER, Judge.

ALL CONCUR.